Abuse of Economic Dependence - The Centre for European Policy ...

Recommendations

Info

14 A Gap in the Enforcement of Article 82 safe harbour of 40 per cent market share is established. The Commission will also consider barriers to entry and countervailing buyer power. The Commission will only penalixe conduct that is likely to harm competition and ultimately consumers rather than conducts that are likely to harm competitors. The Commission will examine direct evidence of any exclusionary strategy, including internal documents which may be helpful to interpret the dominant company’s conduct. In assessing a potentially abusive pricing conduct, the Commission will intervene if the behaviour excludes or impedes an ‘as efficient’ competitor. A dominant firm will be able to rely on an ‘efficiency’ defence, if conduct generates ‘efficiencies’ so that there is a net benefit to consumers. The burden of proof is on the dominant company.
CHAPTER 2 Concept of Dominance The European Union has its origins in the common market established by the European Coal and Steel Treaty in 1952. 1 The aim of the ECSC Treaty, as stated in Article 2, was to contribute, through the common market for coal and steel, to economic expansion, growth of employment and a rising standard of living. In the light of the establishment of the common market, the ECSC Treaty introduced the free movement of products without customs duties or taxes. It prohibited discriminatory measures or practices, subsidies, aids granted by States or special charges imposed by States and restrictive practices. The Treaty dealt specifically with three elements which could distort competition: agreements, 2 concentrations and the abuse of dominant position. Article 66(7) of the ECSC Treaty was based on dominance. 3 The origins of the notion of dominance can be traced back to German competition law. The German competition law (Gesetz gegen Wettbewerbsbeschränkungen (‘GWB’) 4 ) used the term ‘dominance’ in section 22(1); it was a familiar concept due to the previous Abuse Regulation of 1923. 5 One reason for adopting the term dominance rather than the term monopolization which 1 The ECSC Treaty expired on 23 July 2002. Thus, the coal and steel sectors are now subject to Articles 81 and 82, rather than Articles 65 and 66 ECSC. The consequences of this expiry are explained in the Commission’s document Communication from the Commission concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty OJ [2002] C152/5, [2002] 5 CMLR 1036, Section 2: http://europa.eu.int/eurlex/pri/en/oj/dat/2002/c_152/c_15220020626en 00050012.pdf. 2 Agreements or associations between undertakings could be cancelled by the High Authority if they directly or indirectly prevented, restricted or distorted normal competition. 3 Article 66(7) was concerned with the concept of a dominant position: If the High Authority finds that public or private undertakings which, in law or in fact, hold or acquire in the market for one of the products within its jurisdiction a dominant position shielding them against effective competition in a substantial part of the common market are using that position for purposes contrary to the objectives of this Treaty, it shall make to them such recommendations as may be appropriate to prevent the position from being so used. If these recommendations are not implemented satisfactorily within a reasonable time, the High Authority shall, by decisions taken in consultation with the Government concerned, determine the prices and conditions of sale to be applied by the undertaking in question or draw up production or delivery programmes with which it must comply, subject to liability to the penalties provided for in Articles 58, 59 and 64. 4 Available from the Bundeskartellamt website http://www.bundeskartellamt.de/wDeutsch/ index.shtml ?navid=27. 5 Verordnung Gegen Missbrauch Wirtschaftlicher Machtstellungen, 1923, Reichsbesetzblatt, [R6B.1] I, 1067, 2 November 1923.
Page 1 and 2: Introduction The Treaty of Rome 195
Page 3 and 4: Introduction 3 tion of this concept
Page 5 and 6: CHAPTER 1 Objectives of Article 82
Page 7 and 8: Objectives of Article 82 7 economic
Page 9 and 10: Objectives of Article 82 9 Director
Page 11 and 12: Objectives of Article 82 11 Virtual
Page 13: Objectives of Article 82 13 product
Page 17 and 18: Concept of Dominance 17 The stateme
Page 19 and 20: Concept of Dominance 19 criticisms
Page 21 and 22: CHAPTER 3 Abuse of Superior Bargain
Page 23 and 24: Abuse of Superior Bargaining Positi
Page 43 and 44: CHAPTER 4 The Gap in the Applicatio
Page 45 and 46: The Gap in the Application of Artic
Page 61 and 62: from the legal norm itself. Article
Page 63 and 64: In this book we are focusing on the
Page 65 and 66:
The Gap in the Application of Artic
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
CHAPTER 5 How to Rectify the Gap Ge
Page 81 and 82:
How to Rectify the Gap 81 As Faull
Page 83 and 84:
How to Rectify the Gap 83 of the co
Page 85 and 86:
How to Rectify the Gap 85 An argume
Page 87 and 88:
How to Rectify the Gap 87 departing
Page 89 and 90:
How to Rectify the Gap 89 mentioned
Page 91 and 92:
How to Rectify the Gap 91 proportio
Page 93 and 94:
How to Rectify the Gap 93 Depending
Page 95:
How to Rectify the Gap 95 cases is
Page 98 and 99:
98 A Gap in the Enforcement of Arti
Page 100 and 101:
100 A Gap in the Enforcement of Art
Page 102 and 103:
102 A Gap in the Enforcement of Art
Page 105 and 106:
Annex 1 REPORT PREPARED BY THE ICN
Page 107 and 108:
Annex 2 REPORT PREPARED BY THE ICN
Page 109:
Annex 4 Appendix C of the ICN Kyoto
Page 112 and 113:
112 Bibliography P Callol, P Pignat
Page 114 and 115:
114 Bibliography Guidance on the Co
Page 116 and 117:
116 Bibliography J Leibowitz, ‘Ta
Page 118 and 119:
118 Bibliography I Roudard (1989),
Page 120:
120 Bibliography The Distillers Com
show all

Abuse of Economic Dependence - The Centre for European Policy ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?